Introduction

Almost a decade ago, I started to dig into the topic of complex litigation and collective redress. My supervisor, who had written a PhD about res iudicata and had touched on the issue of the binding effect of a judicial decision on third parties, recommended me to talk with an American scholar, since the class action mechanism was seen as ‘the hallmark feature of the American legal system’. Over the course of the years, this (now) colleague, provided me with a wealth of information about American class actions. However, the very first book (s)he gave me was a children's book. It was Maurice Sendak's epic book ‘Where The Wild Things Are’. Since then, I have looked with boundless curiosity and inquisitiveness at the ‘wild things’. Over the years, and as in the book, they have looked tantalizing and enticing. Other times, I perceived them as unfriendly and menacing. Because in some places they are being ousted, the ‘wild things’ decided to move to other places, where they encountered other species. The fact that almost a decade later there is still much ado about the ‘wild things’ stands out like a sore thumb.

In this chapter, I want to reflect about the state and future of European collective redress. The goal is to look at the broader perspective. Various (complex) litigation tools exist, which all aim at achieving collective redress. I see the latter as the goal or outcome of dispute resolution processes. The objective is not to sketch a comprehensive overview of what is going on in the (currently) 28 Member States, but to share some general observations that, according to me, should and could steer the sometimes highly controversial debate.

Introduction

The development of gradual harmonization and unification of private law by the European Union leads from selective, product-related directives to more comprehensive and directly effective regulations. For a long time, European law showed no tendency towards comprehensiveness and systematic responsibility for general private law. Adopting a maximum harmonization approach for directives and regulations developed to unify some areas of private law revealed that creating uniform legal framework conditions for private law transactions can only be achieved if a coherent, functioning private law system is available or created. It is clear that before going further some fundamental questions of private law have to be analysed and answered at the European level. Otherwise, the process of covering more areas of national private laws by uniform rules will stop.

In my opinion, one of the reasons for the current deadlock in harmonization of national laws by the EU is the still unsolved question of the approach that the Union sought to adopt towards the relationship of the contractual and tortious liabilities and claims arising out of them under national jurisdictions. The EU private law legislation concentrates very much on harmonizing and unifying contact law, but monetary payments made by the liable party in order to make up for any losses that result from the breach of contract may also be grounded on tort, especially on national product and services liability regimes.

The purpose of this paper is to highlight the importance for the European legislator of the existing concurrent liabilities in damages under national laws. I argue that the EU legislators (EU institutions and the Court of Justice of the European Union) should be more aware of the legal reality of free concurrence of claims available to the claimants under many jurisdictions. Otherwise, there will always be unwished side-effect of national implementations and concurrence of EU-based law with purely national remedies. Due to the complexity of the topic and different scopes of contractual and tortious regulations, an improper approach to the existing concurrence of liabilities leads to the failures in the process of harmonization of the private law in Europe.

Abstract

Can a State be held legally responsible for wrongs committed by a non-governmental entity (individual or corporation) on the basis that the entity committed them while performing governmental functions on behalf of the State? The affirmative answer of international law to this question relying on concepts that are analogous to concepts of domestic private law constitutes the focus of this article. This article looks at the evolution of a general principle of international law which states that the wrongful act of a non-governmental entity performing governmental functions is to be deemed State action for which the State is responsible. This principle which extends beyond regular government organs, the scope of entities whose wrongful conduct may be attributed to the State for liability purposes, constitutes one of public international law's responses to the increasing decentralization and privatization of public interest functions (such as rail transportation, water supply, social security, health care, prisons and immigration control). Proceeding from the viewpoint that elements of this principle bear a close analogy to legal relations established by the respective concepts of vicarious liability, the non-delegable duty and strict liability in domestic tort law, this article sheds light on the unique manner in which international law has made use of these private law analogies to impose liability on the State for conduct of non-governmental entities. The very reliance of international law, under this principle, on the concept of the governmental functions as a basis for apportioning responsibility has also been criticized as being out of touch with the present day reality of an erosion of boundaries between government/public and private spheres of activity. The article sets out to demonstrate with the aid of international case law that this reliance is not entirely misplaced. Rather, the approach of international law provides valuable lessons for national and regional legal orders regarding the proper division of competences and tortious liability between State and private sectors.

Introduction

The body of general principles of international law collectively referred to as the ‘Law of State Responsibility’ represents one of various points of contact between domestic and international law. Despite international law's continued assertion of its autonomy from domestic law, many concepts of international law – and the Law of State Responsibility – are modelled after or constitute analogies of concepts of domestic private law.

Introduction

After decades of developments in information technology and artificial intelligence, ‘autonomous’ systems have come to play important roles in our society. In the Netherlands decisions about study grants are in first instance taken by a computer programme. Computer programmes keep track of the stocks of shops and order new supplies if necessary. These orders are accepted by other computer programmes, which prepare the physical delivery of the ordered goods. Websites offer goods for sale, and sometimes make the price dependent on information they gather about potential customers. These events and acts all take place in a virtual world, but also physical things have become autonomous agents. For quite some time already aircraft autopilots play an important role in air planes. Weapons have been developed that take decisions about life and death without direct human interference, and the development of selfdriving cars has drawn much attention. The ‘internet of things’ is still on the brink of emerging, but it seems a safe prediction, that some of these ‘things’ will turn out to be autonomous systems.

These new developments raise many questions. How will human beings respond to autonomous systems if they have to interact with them? Is it morally right to have machines take actions in matters of life and death? And – from a legal perspective – is it possible and desirable to hold autonomous agents responsible and liable for what they did?

These last questions represent the core of the present article. Before going into more detail on the arguments to come, we must f0069rst mention a preliminary question: does it make sense to write about autonomous agents and their acts if we are not dealing with human beings? Can we say that soft ware applications and automated physical systems really act, or are the real agents always human beings, who may use soft ware and hardware tools to realize their intentions? If the latter is the case, the issues of responsibility and liability do not arise for these other systems. As will turn out later, the answer to the question whether it makes sense to write about autonomous non-human agents is a substantial part of the answer to the question whether it is possible to hold these agents responsible. The answer to this preliminary question can therefore only be given in the context of the main argument of this article.

Abstract

Keywords: Regulation Brussel Ibis; weaker parties; consumer disputes; insurance contracts; individual contracts of employment; jurisdiction; recognition and enforcement of judgements; lis pendens; choice of court agreements

Introduction

The jurisdictional and enforcement regime of the Brussels I Regulation1 contain provisions the purpose of which is to minimise the imbalance and to restore the bargaining position of ‘weaker’ parties in commercial legal relationships. These provisions intend to ensure that any advantage presumed or achieved by a contracting party with a dominant bargaining position will remain without legal entitlement and effect. Consequently, certain rights obtained in such legal transactions will be unenforceable against a ‘weaker party’. To this end rules on jurisdiction and enforcement are adjusted so as to enhance the position of a weaker party in proceedings before national courts. The provisions aiming at protecting a weaker party relate to disputes arising under insurance contracts, and consumer and labour disputes.

Additionally, a prorogation of jurisdiction is only valid to the extent that it complies with the special rules provided for weaker party disputes. Consequently, the courts in the EU Member States can establish jurisdiction against a weaker party defendant only on the basis of the Regulation. The applicability of national rules on jurisdiction is thereby excluded. In other words, such defendants are ‘protected’ against national rules on jurisdiction in EU Member States including exorbitant jurisdictional grounds.

The revised Regulation further enhances the level of protection of weaker parties. The present contribution addresses the major changes in that respect.

Introduction

During the last decades, the role of human rights in the European legal system has expanded. This is especially true for the principle of equality and non-discrimination in Belgium. Not only has this principle led to the rise of non-discrimination law, it has also been used by the Constitutional Court – by using a very broad interpretation of the principle of equality – as an instrument to broaden its competences. Consequently, all legal branches are affected by this ‘constitutionalisation’-process. This is also the case for the Belgian law of obligations.

In 1981, this evolution was only in its infancy. The first anti-discrimination law had been adopted that year, but it did not yet have the broad scope of application that it would receive later on. It was only gradually that anti-discrimination law became relevant for the law of obligations. Similarly, the Constitutional Court has been established in 1984 but only started to have influence on the law of obligations in 1995 when it found some prescription rules in the field of tort law to be in violation with the constitutional principle of equality. Some scholars at that time were surprised by this ‘sudden’ influence of the principle of equality on the law of obligations. Nevertheless, it has become more and more common that the compatibility of rules of the law of obligations with the principle of equality is tested before the Constitutional Court.

In this contribution we will discuss the increasing influence of the principle of equality and non-discrimination in the Belgian law of obligations7 since the adoption of the first anti-discrimination law in 1981 and the establishment of the Constitutional Court in 1984. In order to do so, we will make a distinction based on the different addressees to whom the principle of equality is aimed: government and citizens. Indeed, the principle of equality is aimed at citizens who make contracts in the sense that it forbids them to discriminate one another. The government, on the other hand, has to take the principle of equality into account when it makes laws or delivers judgments with regard to the law of obligations. Rules cannot be drafted in such a way so that they treat different tort victims or contracting parties in a similar situation in a discriminatory way.